Judge nixes Jerry Sandusky trial delay, weighs dropping some charges

BELLEFONTE — With five days to go before jury selection in the Jerry Sandusky trial, signs are pointing more and more to Centre County’s most-talked-about case heading to court as planned.

On Wednesday, Senior Judge John Cleland denied another motion from the defense for a delay.

Defense attorney Joe Amendola made the request Friday, but it was sealed by court order because it refers to “secret grand jury matters.” It’s the third time the judge has ruled against that kind of request.

Cleland also said opening remarks will be heard as early as June 11, dedicating at least four days for jury selection. That was mentioned in a document in which Cleland outlined his expectations for the public and the media attending the trial.

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In a pretrial hearing Wednesday afternoon in the Centre County Courthouse, Cleland heard legal arguments about the defense’s request to dismiss some charges related to two unknown alleged victims and the incident Penn State police investigated in 1998 that was never prosecuted.

The flurry of activity in the case Wednesday shows how complex it is, while offering a glimpse of what’s been happening behind the scenes.

Speculation on a plea deal was rampant just two days ago, on Tuesday, when Sandusky met with the judge, attorneys and investigators for almost 21⁄2 hours inside the courthouse annex.

But Cleland cleared the air Wednesday morning about that previously unannounced pretrial conference.

He wrote, in an order, that he had a private hearing on Amendola’s motion to delay jury selection. Cleland outlined — and responded to — Amendola’s reasons for requesting a delay: a jury consultant and a mental health expert won’t be available; he wanted more time to sort through voluminous discovery materials; one of his investigators won’t be able to assist because of surgery; and former Penn State administrators Tim Curley and Gary Schultz won’t testify because they are charged in a separate case in Dauphin County. The fifth reason wasn’t disclosed because it pertained to grand jury matters.

Cleland said delaying the trial provides no guarantee the issues would be resolved soon. He wrote in the decision that he took into account Sandusky’s right to a fair trial, the alleged victims’ right to their day in court, the state’s obligation to prosecute promptly and the public’s expectation for timely justice.

“It is equally as likely, and perhaps more likely, that the immediate issues will simply be

replaced by issues even more complex as this prosecution and its related litigation unfolds, causing even more requests for delay,” Cleland wrote.

He went on: “(T)he reality of our system of justice is that no date for trial is ever perfect, but some dates are better than others.”

Also Wednesday, Cleland denied Amendola’s request to appeal to the Superior Court the judge’s denial of his motion to delay jury selection.

In front of Cleland in court on Wednesday, Amendola argued for some of the charges to be thrown out because he doesn’t think there’s sufficient evidence to support them. He’s asking for a hearing for the judge to decide.

He told Cleland the more the jury hears about the allegations in court, the more likely they could be to convict Sandusky.

Cleland didn’t immediately rule. But he sounded inclined to let the jury determine the fate of charges pertaining to the 1998 incident involving a boy whose mother complained that Sandusky had showered with him; and the charges related to the 2001 incident when Mike McQueary allegedly walked in on Sandusky naked in a shower with a boy.

Cleland sounded more likely to consider deciding whether the charges pertaining to alleged victim No. 8 — a young boy whom a Penn State janitor reported being abused by Sandusky — can continue to trial.

The 45-minute hearing largely revolved around the legal debate of whether what the janitor, Jim Calhoun, told fellow janitors could be admissible as evidence.

The prosecution argued that what Calhoun said is an “excited utterance” and should be admissible. Calhoun now has dementia, and prosecutors have said he won’t be able to testify. Prosecutor Frank Fina said the state can provide contextual and circumstantial evidence from before and after the janitor’s “excited utterance” for the judge to decide.

According to the grand jury’s presentment, Calhoun saw Sandusky performing oral sex on a boy in a Lasch Building shower room. Another janitor, Ron Petrosky, testified he saw two pairs of feet in the shower room and later saw Sandusky leave the shower room with a young boy. After Sandusky left, an upset Calhoun told Petrosky what he saw, according to the presentment.

Amendola argued that case law holds that what the janitor said isn’t admissible unless there’s corroborating evidence and that the prosecution hasn’t offered any corroborating evidence.

In a separate order Wednesday, Cleland said jurors who received a summons for jury duty should report to the courthouse on Tuesday as early as 7:30 a.m. and no later than 8 a.m.

During opening remarks and testimony, the public will be admitted on a first-come, first-served basis. Anyone who leaves when court is in session will not be allowed back in while court is in session.

News media will be allowed to use computers and other electronic devices for reporting, but they are forbidden from reporting real-time verbatim quotes.

Mike Dawson can be reached at 231-4616. Follow him on Twitter @MikeDawsonCDT

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